Matadin Garwal vs Syed Abdul Razack

P. Ramakrishnam Raju, J.—This Letters Patent Appeal is filed against the order dated 3-8-1993 made in Review C.M.P.No. 7256 of 1993.Theappellantfiledasuitforspecific performance of the agreement of sale dated 27-6-1978. The suit was filed on 1-9-1981. The suit was partly decreed granting alternate relief of recovery of money. Challenging the said Decree, C.C.C.A. No. 47 of 1990 was filed. Pending the appeal, the appellant obtained interim injunction in C.M.P. No. 9018 of 1990 dated 5-7-1990 restraining the respondent from alienating the plaint schedule property. Many attempts were made to serve the order of injunction on the respondent through registered post, through process server of the Court and also by substituted service. The case of the appellant is that the respondent evaded to receive the notice. As the respondent executed four registered sale deeds dated 10-9-1990; 14-9-1990; 4-11-1990 and 22-11-1990, the appellant filed an application in C.M.P. No. 6727 of 1991 under Order XXXIX Rule 2-A of C.P.C for punishing the respondent and to commit him to civil imprisonment for violation of the injunction order. The said application came before our learned brother Justice J. Eswara Prasad on 8-4-1993. The learned Judge on consideration of the Commissioner''s report and also all the material circumstances, finally held as follows:

"It is clear that the respondent has been playing hide and seek game with the Court and has acted in utter disregard to the orders of this Court, and deserves to be dealt with severely.

Having regard to the facts and circumstances of this case and the conduct of the respondent, the respondent deserves to be detained in a civil prison for a term of three months."

Questioning this order, the respondent filed L.P. Appeal No. 94 of 1993 on 16-4-1993. When the L.P.A. came up for admission at his request the matter was adjourned by two weeks. Meanwhile, he filed the present application 21-4-1993 to review the order passed by the learned Single Judge. The respondent has withdrawn the L.P.A. in June, 1993 and accordingly it was dismissed. The review petition came up before the learned Judge on 3-8-1993. On 27-7-1993, the respondent filed a memo into the Court stating that he is prepared to deposit Rs. 75,000/- which, according to him, roughly represents the sale consideration for the four documents. The learned Judge observed in the impugned order that he is not convinced that the petitioner therein has made out grounds for review of the order on merits. Having observed thus, he however, modified the order of punishment from imprisonment of three months to attachment of an amount of Rs. 75,000/- deposited by the respondent. It is this order that is challenged under this L.P. Appeal.

Sri K.F. Baba, learned Counsel for the respondent takes a preliminary objection that the L.P.A. is not maintainable. He cites a Full Bench decision of this Court in M. Agaiah Vs. Mohd. Abdul Kereem, . Basing on the said decision he submits that a mistake or error or defect corrected in review cannot be a subject matter of the Letters Patent Appeal. He relies upon the following observations made by the Full Bench in the said decision:

"Finally,, our opinion based on the relevant provisions of the Code and the decided cases is that it is only the disregard to the two provisos of Rule 4 of Order 47 that is within the contemplation of Rule 7(b) of Order 47 and that every contravention of Rule 1 cannot furnish a ground of attack in an appeal against that order, such as an error apparent on the face of the record or insufficiency of grounds."

Sri S.C. Rangappa, learned Counsel for the appellant relies upon a Full Bench decision of this Court in M. Srinivas Vs. Jawaharlal Nehru Technological University, wherein the Full Bench held that Section 104(1) read with Order 43 Rule 1 C.P.C was an additional right conferred on the litigant and in case an order was not appealable under Clause 15 of the Letters Patent, an appeal could still be filed u/s 104(1) read with Order 43 Rule 1 C.P.C. The Full Bench followed the Supreme Court in Shah Babulal Khimji Vs. Jayaben D. Kania and Another, wherein the Supreme Court held at Para 103 as follows:

"We might mention here that under Cl.(w) of Order 43, Rule 1 an order granting an application for review is appealable. On a parity of reasoning therefore an order dismissing an application for review would also be appealable under the Letters Patent being a Judgment though it is not made appealable under Order 43 R.1."

Now applying the said test to the facts of this case, the order passed by the learned Single Judge on 8-4-1993 is an original order made in C.M.P. No. 6727 of 1991 in C.C.C.A. No. 47 of 1990. There is no doubt that the said order is an appealable order. In fact the respondent has filed L.P.A. No. 94 of 1993 which was later withdrawn. The said order was substantially and materially interfered with by the impugned order and the interference cannot be said that it is only to correct the error or defect or mistake. Therefore, the impugned order reviewing the earlier order being a judgment is certainly appealable and therefore, we have no doubt that the L.P. Appeal is maintainable.

Now, we will refer to the facts of the case. The respondent who owes a duty to receive the notice from this Court and also inspite of notice by registered post as well as through Process Server, he has evaded to receive the same. Ultimately, the service had to be effected by substituted service. Therefore the learned Single Judge has rightly observed that the respondent was applying hide-and-seek game with the Court and therefore the respondent deserves to be dealt with severely. In the impugned order also, the learned Judge has once again reiterated that there are no grounds for reviewing the order, on merits. But, even though there are no mitigating circumstances or changed circumstances to reduce the punishment, the learned Judge interfered with the earlier order and entertained the review petition by removing the punishment and confining the same to one of attachment of properties of the respondent. In our view, the said order has not at all imposed any punishment, on the respondent. Ample discretion has been conferred on the Court under Order 39 Rule 2-A of C.P.C, when it finds that injunction order has been flouted, to impose punishment. When the learned Judge himself observed that it was a case that has to be severely dealt with and sentenced the respondent to imprisonment, it is not open to the same Judge now under the guise of review to modify the sentence and to delete the operative portion of the order resulting in exonerating the respondent from his liability for flouting the injunction order.

The learned Counsel also relied upon a decision of this Court in Gurrala Venkataswamy and Ors. v. Halam Malamanna and Ors. 1977 A.P. 186 wherein A.V. Krishna Rao, J., held as under:

"There appears to be a feeling on the part of some judgment-debtors in suits where decrees of the present type are passed that they can defy the decree passed by the Civil Courts with impunity. It is time that such an impression on the part the judgment debtors be removed. The Civil Court when necessary can come with a heavy hand on those who do not obey its decrees when the circumstances justify the Civil Court need not stay its hands from punishing those guilty of wilful disobedience of its orders."

We entirely agree with that view expressed in the decision cited supra at (4). In case of disobedience of the orders, the Court must deploy its firm hand and the erring party shall not be spared and left scot-free. The Courts shall not be lenient in such matters where the party in utter disrespect adopts a totally defiant attitude towards the orders of the Court. Stern action resulting in deterrent punishment must unhesitatingly follow in such cases. The interference of the learned Judge in modifying the sentence is not warranted in view of the facts and circumstances of this case. We accordingly allow the appeal and restore the order dated 8-4-1993.

After pronouncing the judgment, the learned Counsel for respondent Mr. K.F. Baba sought for leave of this Court to appeal to the Supreme Court. We do not find that there is any substantial question of law of general importance so as to grant leave. Accordingly, his oral request for leave is rejected.